« PreviousContinue »
lated in a great measure to that of "A Bill for the amendment of the Law
there must at some period or another MrM'Culloch, therefore, who quotes be a failure of land adequate to meet Sir William Temple and Dr Johnson the requirements of realised fortunes. on the same side, would preserve the If, in the judgment of reasonable and law of perpetual entail for the Scot- practical observers, the difficulty could tish peerage, and extend it also to be met by making all future entails that of England. In other respects he subject to be barred by a process is, as we have above stated, in favour analogous to that existing in England, of a considerable modification of the we should think there could be no Scottish law of entail. He admits, hesitation in affirming it to be the however, the difficulty of dealing with most just and most expedient course existing entails.
to introduce such a change, and leave “ These have established a right of
the existing settlements in their conproperty not only in the actual
templated perpetuity. If, however, it
possessors and their families, but, speaking gener
can be clearly established that already ally, in a wide circle of collateral heirs ;
too much land is locked up in the nor could the rights of the unborn heirs northern kingdom, and that the soil be affected without annulling the clauses
now free from entail is insufficient to in a great number of settlements, and also satisfy the requirements of future in marriage-contracts and other deeds buyers, then we should say that the inter piros. It is, therefore, hardly pos- utmost care and skill were required sible materially to relax the fetters of in framing enactments which should entails with strict justice to all parties, adapt themselves to the justice of though it might perhaps be slowly and particular cases, and should, as far gradually effected without inflicting any very serious hardship on any individual. interests in their delicate multiplicity
as might be, save existing and vested We incline to think that this might be most easily brought about by saving the
and connexion. If ever such care and rights of living heirs of entail, and of skill were required, it would be in a such heirs as may be born under existing measure which interferes more extenmarriage-contracts. The interests of the sively with vested rights—usually witlx possible heirs that might be prejudiced by good reason a sacred thing in the eye the adoption of some such rule as this, of the law-than any which appears in are of so very unsubstantial a description the statute-books of the three kingthat they might safely be neglected." doms. A statute to convert the Irish P. 78.
tenants into owners of the fee-simple At the time we write, a measure is' of their several holdings, (a project pending before Parliament, entitled which has been talked of,) would
scarcely be a more startling invasion à voluntary or (as the Scotch say) of the rights of property as they are gratuitous conveyance. Tailzies, howusually recognised. We do not, how- ever, to which no clauses are annexed, ever, intend to impeach the general do not prevent the heir from conveyprovisions of the bill. If, as we before ing the lands in any manner he observed, so important a change was pleases. Now, as the object of this found to be necessary, it is right to bill is to relax the bonds of perpetual make it; and it is no more than was inalienability, we presume that only effected in England by a more gradual those tailzies which are guarded by process—the subtle fictions of the law. the irritant and resolutive clauses are courts, which virtụally got rid of the within its purview. If so, the general statute De Donis. But we can anti- expression “deed of tailzie" should cipate nothing but uncertainty and have been distinctly limited. If that multiplied litigation, from the appa- expression should be held to comprerently crude and careless project now hend all deeds of tailzie, which it must before us.
of course do when taken by itself, then An instance of the loose wording of the proposed act will exercise a very this bill strikes the reader in the very extensive disabling power, by refirst section. It proposes to enact stricting the unlimited right of aliena" that where any estate in Scotland tion under tailzies of simple destishall be entailed by a deed of tailzie, nation,* and the right of alienation dated on or after the first day of for value under tailzies with prohiMarch one thousand eight hundred and bitive clauses only introduced, to the forty-eight, it shall be lawful for any peculiar form and instrument pointed heir of entail, born after the date of out by this bill, and which we supsuch tailzie, being of full age, and in pose was devised in analogy to the possession of such entailed estate in forms substituted for fines and recovirtae of such tailzie, to acquire such veries by the statute 3 & 4 Will. IV. estate in fee-simple, by applying to the Court of Session, &c. Now, what is We have already seen how Mr this estate which the heir of entail is M'Culloch would deal with the diffito acquire in fee-simple? The estate- culty of disturbing the devolution of tail
, for so it is by hypothesis. But to lands already limited in perpetual talk of acquiring an estate-tail in fee- entail-namely, by “saving the rights simple is nothing better than down- of living heirs of entail, and of heirs right nonsense. An estate-tail is, by born under existing marriage-conthe origin of the word, cut or carved tracts." We think our author has (taillé) out of the fee-simple. You
not, in this passage, expressed himmay talk of converting or enlarging self with due legal perspicuity and the part into the whole, but you can
precision. The phrase "living heirs not talk of acquiring the part in the
of entail" is somewhat vague and unentirety of the whole. This is not all;
certain ; we presume Mr M‘Culloch the bill plunges at once in medias res,
intended the living issue of the heir definition of the important phrase, us with any sort of of entail in possession, and all living
heirs-substitute and their living issue. " heir of entail," in this and other Again, what are existing marriageclauses. The 'same expression in the statute 1 Jac. VII. c. 32, has
contracts? Probably those marriage
contracts are intended, which are already (see Sandford's Entails, P.
annexed to marriages solemnised 231) given rise to no small question
before the introduction of a ing and litigation, which promise to system. Both these suggestions, as be renewed in abundance should this we have interpreted them, might measure pass into a law. Again, per
with justice and advantage have petual inalienability is not an incident formed part of the new law. It is bound by what are called the prohi
Lands merely true that this would, at all events
for a considerable period of time, stop bitive clauses, may be alienated for a short of that assimilation of the Scotvaluable consideration, though not by
tish law to the English which seems * See Erskine's Institutes, B. iii. tit. 8, S$ 21-25.
to all estates-tail.
to have been a great object with the which the first estate under the entail framers of this bill. But the two is limited to a man and the heirs of systems would gradually correspond; his body, and the second to his second and we hold that there is a principle son and the heirs of his body; then, of justice involved in the upholding supposing the eldest son to die in the of contracts the objects of which are lifetime of his father, the second son as yet unfulfilled. Where an English would be both the next heir-substitute setiler has limited lands to a man for and also the heir-apparent. Is this, life, remainder to his first and other therefore, the only case within the sons successively in tail, he knew, at act ? Scarcely, we should think, was the time of making the settlement, it so intended. Are we, then, to inthat it was liable to be barred with terpret the word heir-apparent in the consent of the eldest son on his coming sense in wbich the phrase heir-preof age. But it was not so with a sumptive is generally used ; and must Scotch settler who executed a deed of we suppose that the cases indicated tailzie to several brothers as successive are those in which there is no issue heirs-substitute; and the legislature under the first entail, and therefore has no right, without the gravest the next heir-substitute is what we public cause, to step in and defeat his should call heir-presumptive to the intention.
person in possession ? If so, what is But the bill, though intending to to become of the numerous cases where give far greater liberty to the owner there is issue to take under the existof an entailed estate than Mr M'Cul- ing estate-tail? Or can it be that the loch does, or, as we think, is consistent issue in tail is altogether forgotten by with justice, sets about affording him this act, and that the person whose aid in the most ambiguous and misty consent is required is merely the next manner conceivable. The 2d clause heir-substitute in any case? We are enacts that the heir of entail in pos- inclined to think this the most prosession, born after the date of the act, bable explanation of this unfortunate may disentail in the manner provided clause, but can scarcely imagine that by the act; and an heir of entail born it will be suffered to pass into a law. before the date of the act may simi- A further ambiguity, however, arises larly disentail,“ with the consent (and with respect to this term heir-appanot otherwise) of the heir-substitute rent, from its having a peculiar technext in succession, and heir apparent nical meaning in the Scottish law. under the entail of the heir in posses- "He who is entitled," says Erskine, sion,” he being born after the date of " to enter heir to a deceased ancestor the act, and capable of contracting. is, before his actual entry, styled, both
We should recommend the tenant in our statutes and by our writers, in tail to be very cautious how he apparent heir." If the bill intends attempts to “ acquire bis estate in any reference to this legal acceptation fee-simple” under the provisions of of the phrase, we cau only understand this clause. He is to obtain the con- the person whose consent is required, sent of the heir-substitute next in suc- to be such person as, being next heircession. So far his course is clear. substitute, would, on the immediate But the same person is also designated decease of the possessor, be his appaby the term “heir-apparent under the rent heir, or entitled to enter on the entail of the heir in possession.” Now, lands. This, again, shuts out all those is this a qualification of the general estates where the possessor has issue term “ heir-substitute next in succes- in tail, and would, consequently, limit sion," and must such person, under the operation of the bill to exceptional the act, be also heir-apparent? If so, cases. We think we have said enough what is the particular qualification to convince our readers that this clause required of him under the expression is not likely to set free many entailed " heir-apparent ?” Adhering to the estates in Scotland-at all events, not use of the phrase in popular language, without a chaos of litigation, in which we must take, as the only circum- the elements of profit will have a tenstances under which the next heir- dency to range themselves on the side substitute and the heir-apparent are of the lawyers. one and the same person, the case in The person whose consent is to be
obtained (whoever that mysterious endeavoured to establish, and to the sys. person may be) is, as we have seen, tem followed in this country, than this to be born after the date of the act. law. It is therefore lucky that it is now In conformity with this principle, one
no novelty. It has been established for would have supposed that where the
more than half a century, so that we may next heir-substitute shall have been
trace and exhibit its practical influence born before that date, then it should lation subject to its operation. Such an
over the condition of the extensive popube necessary to obtain the consent of experiment is of rare occurrence, but the first person entitled to take per when made is invaluable. And if its results formam doni, who shall be born after should confirm the conclusions already this date, together with the consent of come to, it will go far to establish them all those who are to take before him. on an unassailable basis.”—P. 80-81. The third clause, however, introduces a new form of protection to the settle- results may be traced in the state of
We have arready seen how these ment, and merely enacts that, in such French agriculture. They may also, cases, the consent of a certain number of the heirs-substitute is to be ob- we think, be discerned in the relative tained, (the blank left for the number France bear to other classes in the
position which the landholders of was filled up with the word " three in committee of the House of Com
social scale. These, numbering be
tween four and five millions, ought, mons. Nothing said about the issue in tail, as before.
as a class, to constitute the leaders of
the nation. So far from this being the Where the main enactments of the bill are so incomprehensible, it is use
case, they are perhaps the most inert less to dwell on its details. We can
and uninfluential portion of the comonly say, that whatever evils may be munity, having apparently had little
or no voice in the two revolutions shown to exist under the present law, which have swept over their heads they will not only fail to be cured, but within the last eighteen years, and as must be aggravated tenfold, by such a
little in the erection, maintenance, or product of off-hand legislation
downfall of the Throne of the Barri. * Sent before its time cades. It yet remains to be seen Into this breathing world, scarce half made up, whether they will continue to accept And that so lamely and unfashionable,”
every thing which the clubs of Paris that it must necessarily die of its own are willing to force upon them. As deformity, unless the law-courts will tax-payers and cultivators of the soil, lick it into shape by their decisions,- it can hardly suit them to be propaa shape (as it must be) in which its gandists ; as men who have something own parents would not know it again. to lose, they will not readily give in
The law of real property in France to the dictatorial vagaries of Ledru exhibits a system so distinctly anta- Rollin. If, however, they would hold gonistic to our English and Scottish their own, it is time for them to be up law of entail, that we cannot be sur- and doing. France has been governed prised at the attention with which Mr by a minority before now. M'Culloch has investigated its in- We have always regarded it as one fluencés.
of the main advantages of a landed
aristocracy, that it raises up a prin« According to the law of France, a
ciple of social rank antagonistic to person with one child may dispose at
that of mere wealth. In France, the pleasure of a moiety of his property, the child inheriting the other moiety as legi
constant subdivision and transfer of tim, or matter of right ; a person having land breaks down this influence, and two children can only dispose of a third
causes land to be regarded as a mere part of his property'; and those having marketable article and equivalent for more than two must divide three-fourths money. of their property equally amongst them, “ In countries where the custom of one-fourth part being all that is then left primogeniture exercises a powerful influat their disposal. When a father dies in- ence, families become identified with testate, his property is equally divided estates-the family representing the esamong his children, without respect to sex tate, and the estate the family. The or seniority. Nothing can be more dis- wealth and consideration enjoyed by the tinctly opposed to the principles we have latter depend upon, and are intimately connected with, the possession of the lands from the position of a day-labourer to which have descended to them from their that of an occupier of land. On the ancestors. They estimate their value by
same principle we are rejoiced to obanother than a mere pecuniary standard.
serve the gradual extension of the alThey are attached to them by the oldest and must endearing associations; and they have a still more beneficial effect, we
lotment system ; although it would are seldom parted with except under the most painful circumstances. Hence the think, if the land was granted in the perpetuity of property in England in the shape of a croft about the cottage, same families, notwithstanding the limit- thus giving the tenant a greater inteed duration of entails ; great numbers of rest, and more individual sense of proestates being at this moment enjoyed by prietorship, than when his piece of those whose ancestors acquired them at or land is packed, along with a number soon after the Conquest. But in France of others, into a mass of unsightly such feelings are proscribed. Estates and patches. families have there no abiding connexion ;
In connexion with the small holdand at the demise of an individual who ings in Ireland, it should not be forhas a number of children, his estate can hardly escape being subdivided.
gotten that this subdivision of the
And this effect of the law tends to imbue the land results mainly from the practice proprietors with corresponding sentiments
of sub-letting; and this again has and feelings. “Non seulement,' says M.
arisen in a great degree from the De Tocqueville, la loi des successions practice of granting long leases, rend difficile aux familles de conserver the want of which in England has intacts les mêmes domaines, mais elle leur served, among many other things, for ôte le désir de le tenter, et elle les en- an outcry against the landlords. Mr traine, en quelque sorte, à coopérer avec M‘Culloch has pointed out the evils of elle à leur propre ruine.' ”—P. 85-86.
too long leases on the farming tenant, But Mr M'Culloch dwells more par- that they superinduce a sense of seticularly on the injurious effects to curity which easily degenerates into agriculture from the parcelling out of indolence. But the influence on Irethe land into small properties. He land is even worse, by breaking up shows that a small proprietor is not the land into small patches, on which so efficient a cultivator of the soil as a
the occupier can but just maintain tenant, in which doctrine Arthur himself, paying an exorbitant rent to Young had preceded him. He shows, the middleman. For it is not the also, that the subdivision of properties eager demand for land amongst the leads to the subdivision of farms, and Irish peasantry, as we sometimes urges that it is impossible to have good hear, that has produced this subdivifarining on small patches of land. Of sion of the land, but the subdivision the miseries of an agricultural system that has produced the demand, by carried on by small farmers on petty putting the cultivation of the land holdings, we have already a sufficient into the hands of a class who are example in Ireland. We cannot but unable, through want of skill and think, however, that the progress of capital, to carry it on; who cannot, things in England has too much swal- therefore, furnish employment for the lowed up those little farms of from labourers, and thus drive them to thirty to fifty acres, which at one time
grasp at little parcels of laud as their were common over the country: Not only means of securing a wretched but what capital is employed at a subsistence; and this security, as we great disadvantage on these little hold- know, has more than once proved but ings—but where there is a general sys- a fancied one, as in the disastrous tem of good-sized farms, an intermix. failure of the potato crop. ture of smaller farms is not attended While we are on this subject, we with injurious effects proportional to may draw the reader's attention to a those which arise where the whole of very able pamphlet by an Irish genthe land is split up into minute parcels. tleman, on Irish matters, which, And then small farmers furnish a link though we believe it has never been between the yeomanry and peasantry, published, has had an extensive priwhich it is useful to maintain, cheering vate circulation. We allude to " An the poor man's lot by pointing out to Address to the Members of the House him a path by which he may advance of Commons on the Landlord and